May 25, 2017

“Doin’ right ain’t got no end”

Natural rights and past wrongs

Mr. Neff is senior editor of The Last Ditch.


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It is the mark of an educated mind to expect that amount of exactness in each kind which the nature of the particular subject admits. It is equally unreasonable to accept merely probable conclusions from a mathematician and to demand strict demonstration from an orator. (Aristotle, Nicomachaean Ethics, Book 1, chapter 3)
How is it possible for a free society to arise in a context in which so much injustice has preceded it?

To deal with this question, I wish to draw attention to my formula: I use the verb "to arise." A free society cannot be "established." It cannot be "designed." It cannot be "set up." It arises when the people living in a society decide to interact and to interact without violating one another's person or dignity. And the theory of natural rights was formulated in an attempt to arrive at principles by which that can happen.

It is not a theory that is designed or intended to answer all questions of social interaction. It is not imagined that it is competent to do so. It is designed in part as an attempt to answer the question, "How can people live together peacefully?" Where such interaction is not possible, the question does not arise, and so the answer cannot be applied. Thus, in the so-called lifeboat situations, by definition, a theory of natural rights is not likely to be useful in solving the ethical questions that present themselves, since, by definition, some of the occupants cannot live at all. This is not to say that only violence is possible or legitimate. But if there are peaceful solutions to the problem, they will not be developed from a theory of natural rights.

One of the problems that a theory of natural rights may not be able to answer, or at least that it may have great difficulty in answering, is what is to be done about past injustice. For most modern intellectuals, being obsessed with race in a way that racists never are, the Great Injustice to be addressed is that of Negro slavery in North America. (They are not so concerned with the chattel slavery of whites over whites, Indians over whites, Indians over Indians, Negroes over Indians, Indians over Negroes, Africans over one another, Indians [in India] over other Indians [in India], or Muslims over nearly everybody. Shall I go on? Sex slavery, drug slavery, tax slavery, conscription [war slavery], wage slavery, health slavery [e.g., Obamacare] everywhere. But that is a subject for another time, and perhaps for another writer.)

And it would seem that if natural rights are to be honored always and everywhere, past injustices pose rather a difficult problem. Did white settlers in South Dakota steal land from the Sioux? Did New Yorkers steal it from the Iroquois? (Did the Sioux steal land from the Pawnee? Did the Iroquois steal land from the Algonkins?) What compensation does natural-rights theory demand? What compensation is due to blacks for the enslavement of their ancestors? (Again, I refer to wealthy North America; no one really cares about what happened, or is happening, in Africa in the absence of whites, possibly because none of the perpetrators and none of their descendants is rich enough to make any acceptable restitution, assuming a proper restitution could be determined.)

In this connection, it is popular in some circles to contemplate "reparations" to the descendants of North America's black slaves. Whatever the merits of this idea, there is a quirk in it which almost no one seems to have noticed and which, I believe, would make "reparations" totally unacceptable to a large number of notional recipients, if they were aware of it. It is a quirk arising from the nature of the reparations themselves. If reparations are to be paid (by whom? for the time being, we do not need to trouble ourselves with this question), they are to be paid in recognition of the laws of inheritance. That is, one is owed reparations by way of restitution for wrongs done to an ancestor. Since the ancestor is no longer alive to be compensated for the wrong done to him, the compensation is paid to his heirs. Therefore, if reparations are to be paid, no one with a living parent would be entitled to a single dime.

Let us dwell on that for a moment, though there is a much deeper problem that I will discuss momentarily. Would those who clamor for reparations be content to see sums paid to others, and not to themselves? If the sums to be paid are sufficiently substantial, would the proposed payment not become an incentive for parricide? For that matter, would sums be owed to the descendant of a former slave if some other direct descendant, in a generation closer in time to the original slave, had committed parricide? Would the system of paying out the reparations not have to include some investigation into every claim to be sure that the money owed to the original slave would be properly owed to a third-generation descendant? And the question of what might be called "interlocking" inheritance would also have to be examined.

The deeper difficulty to which I just referred is this: Reparations presupposes a theory of justice whereby the payer owns anything whatever. That is, if his wealth comes from antecedent injustices, the victims of those injustices would have the prior claim. Thus, even a living New England slave-trader (supposing there were such) might not be able to pay reparations to any given slave if his ascendants had been guilty of crimes that were the source of his wealth — if, for example, he were the descendant of some English landowner whose wealth derived from property stolen from Irish farmers.

In other words, if Proudhon was right and "all property is theft," then reparations are impossible — even if we understand "property" to be land and only land, for all other wealth has its origins in land.

Does any of this suggest that natural-rights theory is impoverished? Or invalid? Or false?

It does not. All it suggests is that we have found a context in which a certain set of principles is not applicable. The Pythagorean Theorem does not apply to a spherical surface, and no one's knickers — not even Euclid's — are in a twist over that fact. Similarly, the existence of a social problem that natural-rights theory does not answer is no cause for disparaging or abandoning the theory. If it is false or its arguments invalid, we shall have to search for some other evidence to that effect.

But, then, how would a free society deal with the problem of past injustice?

The first thing to notice is that it wouldn't.

It wouldn't, because the question presupposes a certain collectivism that may have been completely overthrown by the time a free society emerges somewhere. There is no such thing as "past injustice" to be rectified. There are at most past injustices to be rectified — injustices done to individuals who can demonstrate both injustice and, if I may use the term, "standing" to appeal for a judgment.

In other words, Strakon here is not going to be demanding that injustice to the Miami Indians of Huntington County, Ind., be rectified. Still less that it be undone. (No principle of justice can require the impossible.) Rather, someone has to show up and appeal to some justice-serving entity (let us call it a court for now), and ask for redress. And in asking for redress he must show actual harm done to someone whose interests he may be reasonably supposed to represent. Perhaps he is a collateral descendant of Little Turtle. The point of "standing" is that even if it is determined that some redress is due, and what that redress is, there must be someone who is to receive the redress.

I myself sometimes lose sleep over the injustice done by Muslims to certain Venetian merchants in the 13th century, but even if I could determine exactly who the culprits were and who has benefited from those injustices down through the centuries, it is not clear to whom restitution must be made. It is my understanding that some of those merchants died intestate.

If Little Turtle has no living heirs, then even the most historically compassionate among us must find a way to live with the stubborn fact that justice cannot prevail. People who cannot live with that facet of reality have more to worry about, and the sooner they begin to worry about it, the better for them.

Assuming that certain presumptive heirs can be found to press for restitution to a wronged ancestor, and that the perpetrators of the injustice can be identified with a high degree of certainty, what should happen next? It is at this point that we free-market anarchists will find our most deeply hidden attachment to collectivist modes of thinking challenged. It should be clear that neither I nor any of my readers can predict the outcome. We do not know the crime. We do not know the plaintiff, and we do not know the court. We do not know what principles of resolving conflict have been developed in the absence of a state. Just as none of us could have predicted just how televisions could be sold before there were television programs to be broadcast, or how television programs could be paid for before there were networks for broadcasting them or televisions to receive them, so we must accept that we do not know what kinds of outcomes we might see resulting from proceedings which we have not seen. For that matter, we do not know what outcome will satisfy the applicant for redress.

In the case of Little Turtle's collateral descendant, does he want all the white people of Huntington County to begin paying him rent? Does he want an apology from the descendants of the soldiers who defeated Little Turtle? Does he want a lake named after him? Just what does he want? That is just one of the millions of things you and I cannot know in advance.

What we can know is that in a society in which there is a general commitment to peaceful outcomes in which the use of force is eschewed except in defense, we will have an outcome that is sure to be superior to anything that I or my readers can come up with today.

Some of the cases that arise will be resolved in a manner that does not satisfy the persons who brought them. Again, such is the nature of reality. We must recognize such limitations before anyone ever embarks on this line of thought.

And we must also recognize that in a certain sense, for most of us living today in this society — which turns to violence to solve every imagined wrong — how such cases will be resolved is ... well ... none of our business. Ω

May 25, 2017

© 2017 Ronald N. Neff
Published in 2017 by WTM Enterprises.

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